Mr E and Department of Culture, Heritage and the Gaeltacht

Whether the Department was justified in granting access to a zoo inspection report concerning the applicant’s business

1 April 2020

Background

This review arises from the Department’s decision to grant access to a zoo inspection report concerning the applicant’s business, an Open Farm, pursuant to an FOI request to which section 38 of the FOI Act applies. Section 38 applies where the FOI body concerned has, at some stage in the decision-making process, considered that the record(s) in question qualify for exemption under any of sections 35, 36 and 37 of the FOI Act (regarding, respectively, confidential, commercially sensitive, or personal information) but that the record(s) should be released in the public interest.

Where section 38 applies, the body is required to notify affected third parties before making a final decision on whether or not the exemption(s) considered to apply should be overridden in the public interest. The requester or affected third parties, on receiving notice of the final decision of the FOI body, may apply directly to this Office for a review of that decision.

In this case, on foot of a request received for a variety of records concerning a number of organisations, including inspection reports, the Department notified the applicant that it was considering the release of a zoo inspection report concerning his business in the public interest. It did not specify which particular exemption provision it deemed to apply. The applicant objected to the release of the report. On 5 November 2019, the Department decided to grant access to the report, following which, on 22 November 2019, the applicant sought a review by this Office of that decision.

I have now completed my review in this case and have decided to conclude the review by way of a formal, binding decision. In conducting this review, I have had regard to the communications between the parties, above, and to those between this Office and each party on the matter. I have also had regard to the contents of the report at issue.

Scope of Review

This review is concerned solely with whether the Department was justified in its decision to grant access to the inspection report in question concerning the applicant’s business.

Analysis and Findings

Under section 22(12)(a) of the FOI Act, a decision to grant a request to which section 38 applies shall be presumed to have been justified unless the person to whom the information relates shows to the satisfaction of the Commissioner that the decision was not justified. This means that the onus is on the applicant of satisfying this Office that the Department's decision to grant access to the record at issue was not justified.

In a submission to this Office, the Department said Zoo Inspection Reports (ZIRs) such as the one at issue in this case are produced for every zoo inspection and are considered to be releasable under FOI. It said, however, that it takes the view that zoos may consider some aspects of the ZIR to be commercially sensitive and, taking into account Section 36 of the FOI Act, goes to third party consultation (in accordance with Section 38) before releasing the ZIR. It said zoos usually request that only personal details of zoo staff and perhaps some commercial information be redacted. It said information that may be contained in these reports and that zoos may consider commercially sensitive includes: feeding plans; sourcing and disposal of animals; visitor numbers / pricing; suppliers; and other areas of the day to day business of running a zoo. It indicated that in this case, the applicant did not identify any specific parts of the ZIR that should not be released.

The Department added that it takes the view that release of ZIRs is in the public interest, once section 38 third party consultation has been completed, since the zoos are open to the public and the public has an interest in being aware of health and safety concerns identified by zoo inspectors and / or animal welfare concerns identified by the zoo inspectors.

This Office invited the applicant to make a submission regarding the Department’s decision to grant access to the report. He was informed of the details of the Department’s submission and of the fact that the onus rested with him of satisfying this Office that the decision to grant access to the report was not justified. The applicant was provided with a detailed list of questions that he might consider replying to in support of a contention that any one of the three relevant third party exemptions might apply. However, no response has been received to date.

I note that in his application for review to this Office, the applicant suggested that the report should be withheld and that the original requester should be informed that the farm would be closing for refurbishment and renovations at the end of 2019. He suggested the next report could be disclosed after the works had been completed. He also suggested that the intent of the requester might be to close his farm and that it would be unfair not to give him a chance to get the place up to standard.

While I am required by section 25(3) of the Act to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information, I believe I can appropriately say that the report at issue contains adverse comments in relation to the standards identified within parts of the applicant’s farm. As such, I consider that section 36(1)(b) of the Act is of most relevance in this case.

That section provides for the refusal of a request if the record concerned contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation.

The harm test in the first part of subsection (1)(b) is whether disclosure of the information “could reasonably be expected to result in material financial loss or gain”. The test is not concerned with the question of probabilities or possibilities, but with whether the decision maker’s expectation is reasonable. The nature of the harm envisaged and a basis for a claim that such harm could reasonably be expected to result from disclosure of the particular information in the record(s) at issue should be shown by an FOI body or a third party relying on this provision.

The harm test in the second part of subsection (1)(b) is whether disclosure of the information “could prejudice the competitive position” of the person in the conduct of his or her profession or business or otherwise in his or her occupation. The only requirement which has to be met in the second part is that disclosure "could prejudice the competitive position" of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard required to meet the test of "could reasonably be expected to" in the first part of section 36(1)(b). While the degree of harm required to meet the harm test in the second part is lower than that required to meet the test in the first part, this Office considers that the prejudice or damage which could occur as a result of disclosure of the information must be specified with a reasonable degree of clarity.

In the High Court case of Westwood Club v The Information Commissioner [2014] IEHC 375, Cross J. held that the explanation, as finally given by the FOI body to the Commissioner, did little more than repeat the requirements of what is now section 36(1)(b) and referred to the nature of the documents held. Cross J. stated:

It does not in any sense engage with the proper question ... as to why these particular documents, if disclosed, could prejudice the financial position. ... In particular, the point properly made ... as to the antiquity of the documents was not dealt with at all by the email [from the FOI body].

The High Court decision in Westwood Club makes it clear that it is not sufficient for the party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. The FOI body or the third party opposing release should explain why disclosure of the particular records could prejudice the competitive position of the third party.

In this case, the applicant was given an opportunity to explain why he considered the report at issue should not be released. However, he has not done so to date. He has not identified any information in the report which he considers might give rise to the harms set out in section 36(1)(b) or how such harms might arise. I note his concerns in his application for review about the possible closure of his business. It seems to me that if this were to occur, it would not be as a consequence of the release of the report. Having drafted the report, the Department is already aware of the level of standards identified within the farm.

In the circumstances, having regard to the provisions of section 22(12)(a), I find that the applicant has not shown to the satisfaction of this Office that the Department’s decision to grant access to the report was not justified. Accordingly, I find that the Department was justified in granting access to the report.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to grant access to the zoo inspection report in question.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.